Fifth Circuit En Banc: No Bond Hearings for Those Who Entered Without Inspection. How a Habeas Petition Must Be Built Now

The calls started the afternoon the opinion came out. A wife in Dallas whose husband has been at the Prairieland facility since August, a sister in Houston whose brother was moved from Georgia to Conroe in September, a father in Baton Rouge whose son has a cancellation of removal application pending and a hearing date in January. Each of them had been told by someone that a federal judge could order a bond hearing, and each of them had just read that the Fifth Circuit said no. The question was the same every time: is there anything left to file?

There is. But the petition that worked in the Western District of Texas in February, which argued that the Fifth Amendment requires an individualized custody hearing for a long-term resident who entered without inspection, is dead in this circuit. A petition filed on that theory today will be denied on the strength of the en banc opinion, and it will cost the family weeks they do not have. This article explains what the court actually held, what it left open in its own words, how a habeas petition has to be drafted and supported now, and where the Supreme Court case fits in the timing.

What the en banc Fifth Circuit held

The three petitioners were Ignacio Sosnava Rodriguez, in the United States without inspection for more than twenty-two years; Alejandro Villegas Angel, here since 2011 with two U.S. citizen children; and Miguel Angel Gomez Alvarado, here since 2012 with one U.S. citizen child. All three were detained by ICE after traffic stops in Texas between November 2025 and February 2026. All three filed habeas petitions in the Western District of Texas under 28 U.S.C. 2241, and all three district courts ordered them released unless the government gave them a bond hearing. A divided panel of the Fifth Circuit affirmed on July 2, 2026, and added a rule that the hearing had to occur within 90 days of confinement. The full court vacated that panel decision on its own motion in July, heard argument on September 24, and reversed on October 23.

Judge Cory Wilson wrote the majority opinion, joined in full by eight other judges, with Judge Richman concurring in the judgment only. Judges Ho and Oldham wrote separate concurrences. Judge Southwick wrote the principal dissent for six judges, and Judges Haynes, Douglas, and Higginson each wrote separately in dissent. The holding has four parts, and each one matters for how a petition is drafted now.

• The statutory classification stands. Under Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026), a person who entered without inspection is an "applicant for admission" detained under 8 U.S.C. 1225(b)(2)(A) no matter how long ago the entry was, and that statute says nothing about bond. The petitioners did not contest that classification, which the majority noted more than once.
• Procedural due process does not add a bond hearing. The majority held that a person who was never admitted is entitled only to the process Congress provided for admission, citing DHS v. Thuraissigiam. It added that even under the Mathews v. Eldridge balancing test, danger and flight risk are legally irrelevant to detention under 1225(b)(2)(A), so a hearing to decide those facts cannot be constitutionally required.
• Substantive due process does not either. The court read Zadvydas v. Davis as a case about detention after a final removal order, involving people who had been admitted, and declined to treat its six-month benchmark as a limit on detention during removal proceedings. Under Demore v. Kim, detention that has a definite end point, removal or release, does not violate due process while removal remains a viable prospect.
• Three weeks to three months is not a constitutional problem. Gomez was detained for about three months, Sosnava for about two, and Villegas for three weeks when their petitions were granted. The court held that those periods presented no constitutional defect, and it pointed out that the petitioners had never challenged the duration of their detention as unconstitutional in the first place.

The mandate issued immediately. The opinion is binding on every federal district court and every immigration judge in Texas, Louisiana, and Mississippi as of October 23.

What the majority said habeas can still do

This is the part of the opinion that will decide cases for the next year, and it is being overlooked in the news coverage. In Part V, the majority wrote that none of its analysis "is to say that habeas relief would not be appropriate in circumstances different from these cases," and it gave examples: "factual questions relevant to whether an alien seeking admission is not clearly and beyond a doubt entitled to be admitted," and "other legal grounds not before us." In Part III, it wrote that it did "not dismiss the idea that distinct due process questions might arise if Petitioners' detention no longer served its immigration purpose or if Petitioners' removal proceedings were used as a façade to incarcerate them for other reasons," citing Justice Kennedy's concurrence in Demore and the Eighth Circuit's decision in Banyee v. Garland, which recognized that excessive delay in removal proceedings could violate due process. In Part IV, it wrote that "an issue may arise if the Government continues to detain an alien after it becomes clear that removal is only a remote possibility."

Judge Richman, who supplied the tenth vote for the result, went further in her separate opinion. She expressly declined to decide whether immigration officials might instead detain people like the petitioners under 8 U.S.C. 1226, and if so whether a hearing would be required, because those questions were not before the court. And she anchored her concurrence to the fact that the petitioners had not challenged the duration of their detention.

Read together, the majority opinion and the Richman concurrence leave four habeas theories standing in the Fifth Circuit:

1. The classification challenge. Is this person actually an applicant for admission detained under 1225(b)(2)(A)? The petitioners conceded that they were. A person who was inspected and admitted on any visa, who was paroled into the country, who was previously released on bond or an order of supervision under 1226(a), or whose custody paperwork invokes 1226 is not in the same statutory box. The majority's own words make factual disputes about the classification a proper subject for habeas.
2. The duration and purpose challenge. Detention that has outrun its immigration purpose, or that is being used to punish or to coerce, is a different constitutional question that the court said it was not deciding. This has to be pleaded and proven as an as-applied claim with a record of how long, why, and who caused the delay.
3. The foreseeability challenge. If removal is only a remote possibility, whether because the person has strong relief pending, because the destination country will not issue travel documents, or because a stay is in place, the court said an issue "may arise." That is a Zadvydas-type showing adapted to pre-order detention, and it needs evidence, not adjectives.
4. Preserved statutory challenge. Buenrostro-Mendez binds the district courts, but the Supreme Court granted review of the same question on October 1, 2026 in Rhoney v. Barbosa da Cunha, No. 26-104. A petition that pleads the 1226(a) argument and asks the court to hold it, or to rule and preserve it for appeal, keeps the client in position to benefit the day the Supreme Court rules.

What we see when the petition is built on the wrong theory

A hypothetical that mirrors files we are reviewing this week: a man from Honduras, in Texas since 2009, two citizen children, detained in August at a routine traffic stop and held in Conroe. In September the family hired a lawyer who filed a two-page habeas petition in the Southern District of Texas arguing that due process required a bond hearing under the July panel decision. The government moved to hold the case pending the en banc ruling. On October 23 the petition became unwinnable as drafted. The family has now spent two months and a retainer, the man is still detained, and his individual hearing on cancellation of removal is set for December.

The same file approached correctly looks different. The first step is the A-file and the custody documents, not the petition. The Form I-213 record of apprehension and the Notice to Appear show how DHS charged him. The Form I-286 custody determination shows which statute ICE invoked and whether ICE itself set a bond or marked "no bond" under 1225. His 2009 entry turns out to have been a 2009 arrest at the border followed by release on his own recognizance with a notice to appear that was never calendared, which means DHS may have treated him as a 1226(a) detainee sixteen years ago and his classification is a live factual question. His cancellation application has a hearing date and a documented hardship record for a child with a chronic medical condition, which goes to whether removal is a realistic near-term prospect. The petition pleads classification first, duration and purpose second, foreseeability third, and preserves the Barbosa da Cunha statutory argument fourth. That petition survives a motion to dismiss on October 24. The first one does not.

How the habeas petition has to be built now

A post-October 23 petition in the Fifth Circuit is a record-driven, as-applied filing. The majority criticized the petitioners' claim as a challenge to the statute itself rather than to their own treatment. The cure is specificity about this person, this custody, and this delay.

1. Get the custody paperwork before drafting anything. Request the Form I-286 Notice of Custody Determination, the Form I-213, the Notice to Appear, any prior custody redetermination or bond paperwork, and any prior release documents. Note exactly which statute each document cites. If ICE cited 1226(a) on the I-286, or set a bond amount at any point, plead that the government elected 1226(a) and that Richman's reserved question is squarely presented.
2. Establish every prior contact with immigration. A prior inspection and admission on any visa, even one that expired decades ago, takes the person out of 1225(b)(2)(A). So does parole, including humanitarian parole, advance parole, or parole at a port of entry. A prior release on recognizance or bond from an earlier encounter, a prior order of supervision, or a prior removal case that was administratively closed are all facts that change the classification analysis. Plead each one with the document that proves it.
3. Do not concede the classification. The Sosnava petitioners agreed they were applicants for admission, and the majority built its opinion on that concession. If there is any factual basis to contest the classification, the petition must contest it. If there is none, the petition should still plead the statutory argument that 1226(a) governs interior arrests, note that Buenrostro-Mendez forecloses it in this circuit, and preserve it in light of Rhoney v. Barbosa da Cunha.
4. Plead duration as a separate constitutional claim with numbers. State the date of arrest, the total days detained as of filing, the dates of every hearing, every continuance and who requested it, the current hearing date, and the realistic time to a final order including any appeal. The Sosnava petitioners never challenged duration. The majority and Judge Richman both said so. A petition that pleads a six-month, nine-month, or fourteen-month detention with DHS-caused delay is presenting the question the court said it did not decide.
5. Plead purpose and foreseeability with evidence. If the person has an application for relief with a hearing date and a strong record, say so and attach it, because detention pending a likely grant is detention that may not serve a removal purpose. If the destination country is not accepting returns or issuing travel documents, document it. If a stay of removal is in place, attach it. If detention is being used to pressure the person to accept an order or abandon relief, document the facts that show it.
6. Request parole from ICE in writing first, and attach the denial. Release on parole under 8 U.S.C. 1182(d)(5) and 8 C.F.R. 212.5 is the administrative release mechanism for people detained under 1225. A written parole request with identity documents, a sponsor letter, a fixed address, medical records, and proof of pending relief creates the record. A denial, or silence after thirty days, becomes an exhibit showing that the government has had the individualized facts and has declined to act on them.
7. File in the right court against the right respondent, immediately. A 2241 petition is filed in the federal district where the person is physically detained, against the immediate custodian, the warden or facility director, and the ICE field office director. Texas detainees are in the Northern, Southern, Western, or Eastern District of Texas depending on the facility; Louisiana facilities fall in the Western, Middle, or Eastern District; Mississippi in the Northern or Southern District. ICE transfers people without notice, and the petition follows the body unless it was filed before the transfer. The filing date matters more than the polish.
8. Ask for the right relief, in the alternative. Release outright; or an order that the government provide a bond hearing before an immigration judge within a set number of days where the government bears the burden; or, at minimum, an order holding the petition in abeyance pending Rhoney v. Barbosa da Cunha with periodic status reports on the length of detention. Alternative relief gives a district judge who is bound by the en banc opinion a lawful way to act.

The habeas petition and the removal case are one strategy

After October 23, the fastest way out of detention for most people in this group is still a win or a near-win in immigration court, not a federal order. A person who is granted cancellation of removal, asylum, adjustment through a U.S. citizen spouse, or any other relief is released when the grant becomes final, because 1225(b)(2)(A) detention ends when the removal proceeding ends. A person whose application is strong and documented also has the best foreseeability argument in federal court, because the government's own likelihood of removing him is low. The detained docket in Texas and Louisiana moves fast, with individual hearings often set within sixty to ninety days of the first appearance, and a complete application filed on time does more for release than any motion.

That is why we handle the two tracks together. The hardship record, the presence timeline, the country conditions evidence, and the medical documentation are the same exhibits in both courts. For families whose relative has already lost a bond request or an ICE release request, our guides on what to do when an ICE release request is denied and on seeking a second custody review after changed circumstances explain the sequence. What changed last week is that the federal piece now has to be pleaded on the grounds the en banc court left open, with the record to support them.

Transfers into the Fifth Circuit

The en banc opinion creates the sharpest geographic split in immigration detention law in decades. The Second, Sixth, and Eleventh Circuits have held that a person arrested in the interior after an entry without inspection is detained under 1226(a) and may seek bond from an immigration judge. The Seventh Circuit has indicated the same view. The Fifth and Eighth Circuits have accepted the government's 1225 theory. A person held in New York or Atlanta can ask an immigration judge for bond; the same person moved to Texas or Louisiana cannot.

ICE has been transferring detainees from other states into Texas and Louisiana facilities throughout 2026, and the Texas Tribune and the National Immigration Project both reported after the ruling that families should expect the practice to continue. For a family in another circuit whose relative has just been detained, the practical lesson is speed. A habeas petition filed in the district of confinement before a transfer stays in that district under the rule that jurisdiction attaches at filing. A petition filed after the transfer is governed by Fifth Circuit law. For a family whose relative has already been moved into Texas, Louisiana, or Mississippi, the petition has to be built on the four theories above, and a written parole request should go to the new field office the same week. Our guides to filing habeas in the Texas federal districts and to the Louisiana detention facilities and their courts map the venues.

Where the Supreme Court case fits

On October 1, 2026, the Supreme Court granted certiorari in Rhoney v. Barbosa da Cunha, No. 26-104, a Second Circuit case involving a Brazilian national who entered without inspection more than twenty years ago and was arrested in the interior. The question presented is whether 1225(b)(2)(A) mandates detention of people who are present in the United States without having been admitted, or whether 1226(a) governs and bond is available. Argument is expected in early 2027, with a decision likely by the end of June 2027.

The en banc Fifth Circuit decided a constitutional question that only matters if the government is right about the statute. Judge Southwick's dissent said as much: if the Supreme Court holds that 1226(a) governs, the constitutional holding in Sosnava "will have far less significance." A Supreme Court ruling for the detainee would mean that immigration judges in Texas, Louisiana, and Mississippi regain bond jurisdiction over this entire group, and the federal habeas question largely disappears. A ruling for the government would leave Sosnava as the law of the Fifth Circuit and would push every other circuit toward the same constitutional question.

For a family deciding what to do this month, the Supreme Court case changes two things. First, every habeas petition and every bond motion filed between now and June 2027 should preserve the statutory argument, so that a favorable decision applies to the client without starting over. Second, the timeline cuts against waiting. A person detained today will have been held eight months by the time the Supreme Court rules, and the duration and purpose claims the Fifth Circuit left open grow stronger with every month of documented delay. The petition filed now, on the right grounds, is also the petition that will be in the best position in June.

What families in Texas, Louisiana, and Mississippi should do this week

• Locate the person and confirm the facility through the ICE Online Detainee Locator System, and check it again every few days because transfers change the federal court.
• Collect every immigration document the family has, including anything from a border encounter years ago, any old notice, any prior bond receipt, any parole document, and any visa, however old.
• Get the A-number, the next hearing date, and the custody determination form from the person or the deportation officer. Ask specifically whether ICE has issued a Form I-286 and what box is checked.
• Do not file a bond motion or a habeas petition on the "due process requires a bond hearing" theory. The bond motion will be denied for lack of jurisdiction under Yajure Hurtado and the petition will be denied under Sosnava. Both cost time.
• Start the removal case record now. Whatever relief the person is eligible for, the application and its evidence drive both release and the merits.
• Submit a written parole request to the ICE field office with a sponsor, an address, identity documents, medical records, and proof of pending relief, and calendar the thirty-day mark.
• Have a lawyer evaluate the four habeas theories against this person's actual history. Classification, duration, foreseeability, and the preserved statutory claim each depend on facts that only the file reveals.

Frequently Asked Questions

Did the Fifth Circuit end habeas corpus for detained immigrants?

No. The en banc court rejected one theory: that the Fifth Amendment requires a bond hearing on danger and flight risk for a person who entered without inspection and is detained under 8 U.S.C. 1225(b)(2)(A). The same opinion said habeas relief can still be appropriate on factual questions about the person's classification, on legal grounds the court did not decide, when detention no longer serves its removal purpose, and when removal is only a remote possibility. Petitions built on those grounds remain available in Texas, Louisiana, and Mississippi.

Does the ruling apply to someone who entered on a visa and overstayed?

No. The decision turns on the petitioners' status as people who were never inspected and admitted. A person who was admitted on any visa, or paroled into the country, is not an applicant for admission under 1225(b)(2)(A) in the way the court described, and is ordinarily detained under 1226(a) with access to a bond hearing before an immigration judge. Proving the prior admission with the passport stamp, the Form I-94, or the visa record is the first task in those cases.

Can an immigration judge still set bond for someone who entered without inspection in Texas?

Not under current law. Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), holds that immigration judges lack authority to hold bond hearings for people detained under 1225(b)(2)(A), and Buenrostro-Mendez v. Bondi places interior arrests of people who entered without inspection in that category in the Fifth Circuit. A bond motion for that person will be denied for lack of jurisdiction. The Supreme Court will decide in Rhoney v. Barbosa da Cunha whether that statutory reading is correct.

How long does someone have to be detained before a duration claim is realistic?

The en banc court held that three weeks to three months raised no constitutional problem and refused to adopt a fixed six-month line, but it expressly did not decide what happens when detention outruns its purpose or when removal proceedings are delayed excessively. There is no safe number. What makes the claim real is a record: total days detained, the cause of each delay, the status of relief applications, and evidence about whether removal is realistically near. A petition that pleads those facts presents the question the court left open.

Should the family wait for the Supreme Court decision before filing anything?

No. Argument in Rhoney v. Barbosa da Cunha is expected in early 2027 and a decision by late June 2027. A person detained now would be held eight or nine months by then. The removal case moves on its own schedule regardless, the parole request and the custody record should be built immediately, and a habeas petition filed on the grounds the Fifth Circuit left open can preserve the statutory argument so that a favorable Supreme Court ruling applies to the client without starting over.

What is a parole request and why does it matter after this ruling?

Parole under 8 U.S.C. 1182(d)(5) is ICE's discretionary authority to release a person detained under 1225 for urgent humanitarian reasons or significant public benefit. It is the administrative release path that exists for this group when bond does not. A written request with a sponsor, a fixed address, identity documents, medical evidence, and proof of pending relief gives ICE the individualized facts. A denial or non-response becomes part of the habeas record showing that the government has had those facts and has declined to act.

Our relative was moved from another state into a Texas facility. Which court's law applies?

The law of the circuit where the person is detained when the petition is filed. A habeas petition is filed in the federal district of confinement against the immediate custodian, and jurisdiction attaches on the filing date. Once the person is in Texas, Louisiana, or Mississippi, the en banc decision governs, which is why petitions for people in that position have to be built on the classification, duration, foreseeability, and preserved statutory grounds rather than the bond-hearing theory the Fifth Circuit rejected.